Madras High Court
Prabhu vs State Represented By on 7 November, 2022
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.R.C.No.1318 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.11.2022
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C.No.1318 of 2018
Prabhu ... Petitioner
Vs.
State represented by
Inspector of Police,
Velur Police Station,
Namakkal.
Crime No.1152 of 2010 ... Respondent
PRAYER: Criminal Revision case has been filed under Section 397 r/w 401 of
Cr.P.C to set aside the Judgment of the Hon'ble Sessions (Fast Track Mahila)
Court, Namakkal in Criminal Appeal No.23 of 2018 dated on 13.07.2018 in
confirming the Judgment in C.C.19 of 2012 on the file of the Judicial
Magistrate, Paramathy, Namakkal, dated 25.10.2017.
For Petitioner : Mr.S.Silambu Selvan
for Mr.R.Dinesh Kumar
For Respondent : Mr.A.Gopinath
Government Advocate (Crl.Side)
https://www.mhc.tn.gov.in/judis
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Crl.R.C.No.1318 of 2018
ORDER
This Criminal Revision case has been filed as against the Judgment passed in Criminal Appeal No.23 of 2018 dated 13.07.2018 on the file of the the Sessions (Fast Track Mahila) Court, Namakkal, thereby confirming the Judgment passed in C.C.19 of 2012 dated 25.10.2017 on the file of the Judicial Magistrate, Paramathy, Namakkal.
2. The case of the prosecution is that on 15.11.2010, at about 01.30 a.m., the accused broke open the lock of the house belonging to the defacto complainant and broke open the locker and committed theft of two gold rings weighing about one sovereign and a golden pair chain weighing 13 sovereign. Hence, the complaint.
3. On receipt of the complaint, the respondent registered FIR in Crime No.1152 of 2010, for the offences punishable under Sections 457 and 380 of IPC as against two accused persons. After completion of investigation, the respondent filed a final report and the same has been taken cognizance by the Trial Court in C.C.No.19 of 2012.
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4. On the side of the prosecution, they examined P.W.1 to P.W.8 and marked Exs.P1 to P8. The prosecution also produced M.O.1 and M.O.2. On the side of the accused, no one was examined and no document was marked. On a perusal of oral and documentary evidence, the Trial Court found the accused guilty for the offences punishable under Sections 457 and 380 of IPC and sentenced them to undergo two years rigorous imprisonment, each, for the offence under Section 457 of IPC and also imposed fine of Rs.100/-, each, in default to undergo one month rigorous imprisonment, each. The accused were also sentenced to undergo two years rigorous imprisonment, each, for the offence under Section 380 of IPC and also imposed fine of Rs.100/-, each, in default to undergo one month rigorous imprisonment, each. Aggrieved by the same, the petitioner herein preferred an appeal and the same was dismissed confirming the order passed by the Trial Court. Hence, this revision.
5. The learned counsel for the petitioner would submit that there are totally two accused, in which the petitioner is arrayed as A2. Even according to the case of the prosecution, the petitioner was implicated as an accused only on basis of the confession statement of A1. Except the confession, there was no https://www.mhc.tn.gov.in/judis Page 3 of 9 Crl.R.C.No.1318 of 2018 other link to connect the petitioner as accused. There was no recovery from the petitioner. After recovery, the petitioner was arrested and remanded to judicial custody. No one had spoken about the overt-act of the petitioner. That apart, even according to the case of the prosecution, the petitioner was only present along with A1. A1 had handed over the jewels to one Alauddin. Thereafter, he pledged the same in his mother's name and part of the jewels were recovered from him. Therefore, the confession statement of A1 though leads to recovery, even according to Mahazar witness and the Investigation Officer, who deposed that the petitioner was not accompanied with A1. The petitioner was arrested and remanded to judicial custody. That apart, the said Alauddin was not examined and his mother was also not examined by the prosecution, in order to prove the charge. In fact, the prosecution also failed to mark any receipt for pledging the jewels. Therefore, it is fatal to the case of the prosecution and the conviction cannot be sustained as against the petitioner.
6. The learned Government Advocate (Crl.Side) appearing for the respondent submitted that in order to bring home the charges, the prosecution had examined P.W.1 to P.W.8. Though, the entire case is raised on the confession of A1, the Mahazar witness, to the arrest and recovery, were https://www.mhc.tn.gov.in/judis Page 4 of 9 Crl.R.C.No.1318 of 2018 examined as P.W.4 to P.W.6. They categorically deposed that only on the confession statement of A1, the recovery was made and the petitioner was also very much present along with A1. Therefore, they jointly stolen the jewels and pledged the jewels through the said Alauddin. The confession statement leads to recovery. The jewels were duly identified by the defacto complainant i.e.P.W.1. Therefore, both the Courts below rightly convicted the petitioner and it does not warrant interference by this Court.
7. Heard Mr.S.Silambu Selvan, learned counsel appearing for the petitioner and Mr.A.Gopinath, learned Government Advocate (Crl.Side) appearing for the respondent.
8. There are totally two accused, in which the petitioner is arrayed as A2. According to P.W.1, on 14.11.2010, at about 02.15 a.m., P.W.2 informed P.W.1 that she had seen a person inside the sheet house. When P.W.1 visited there, its lock was found broken. On verification, it was found that a golden chain weighing 13 sovereigns, 1 ½ sovereigns bangles, 4 rings and 2 gold coins were stolen by the accused. Therefore, P.W.1 lodged a complaint and the same was marked as Ex.P1. After 15 days, on information, P.W.1 was called for https://www.mhc.tn.gov.in/judis Page 5 of 9 Crl.R.C.No.1318 of 2018 identification of jewels. It was identified by P.W.1. After recording the confession statement of A1, recovery was made by the first respondent. The witnesses categorically deposed that A1 alone accompanied along with Investigation Officer when the jewels were recovered from the Pawn shop as well as from the said Alauddin. According to their deposition, the petitioner, who is being A2, had not accompany A1. Even according to the case of the prosecution, after recovery, the petitioner was arrested. The Investigation Officer categorically deposed that the petitioner was arrested after recovery, on the strength of the confession statement of A1. He also deposed that the said Alauddin and the Pawn broker have stated that A1 only pledged the jewels with them. No one had spoken about the overt-act of the petitioner herein.
9. The part of the deposition of P.W.8 is extracted as follows, “vjpup bfhLj;j xg;g[jy; thf;FK:yj;jpd; ngupy; vd;id Kd;g[ gjpt[ bra;njd;/ vjpy; bfhLj;j xg;g[jy; thf;FK:yj;jpd; ngupy; vd;id miHj;J brd;why; jpUoa rk;gt ,lj;ija[k.; jpUlg;gl;l bghUl;fisa[k.; bfhLj;J itj;Js;s tPl;ila[k;. bfhLj;J itf;fg;gl;l egiua[k; milahsk; fhl;Lfpnwd; vd;W brhd;djd; mog;gilapy; me;j xg;g[jy; thf;FK:yj;jpy; mDkjpf;fg;gl;l gFjp m/j/rh/M/8 nkw;fz;l xg;g[jy; thf;FK:yj;jpy; kzpfz;ld; bjhptpj;j tptu';fs; mog;gilapy; rhl;rpfSld; vjpupiaa[k; fhiy 9/30 kzpf;F nryk; miHj;J brd;W vjpup milahsk; fhl;oa myht[jPd; vd;gthplk; ,Ue;J j';f tisay;fs; 4 j';fnkhjpu';fs; 2 urpahgP vd;w bgahpy; $yfz;lhg[uk; ghuj ! ;nll; t';fpapy; 13 gt[d; mlF itj;j urPija[k.; mjd; vz;/v/$p/vy; 121-964 ehs; 22/11/10 vd;w urPija[k; 4 j';ftisay; kw;wk; 2 nkhjpu';fisa[k; mnj rhl;rpfs; Kd;dpiyapy; ifg;gw;wpndd;/ gpwF nkw;fz;l xg;g[jy;thf;FK:yj;jpd; mog;gilapy; gpug[ vd;gtUk; jd;Dld; jpUlte;jjhh; vd bjhpa te;jjhy; nkw;fz;l gpug[it md;iwa jpdnk 12 kzpf;F vUkhghisak; nuhL g[jpaRz;zhk;g[ R{iy mUfpy; https://www.mhc.tn.gov.in/judis Page 6 of 9 Crl.R.C.No.1318 of 2018 cs;s tPl;oy; FoapUf;Fk; gpug[it nkw;go vjphp milahsk; fhl;l 12 kzpf;F mtuJ ,y;yj;jpy; tprhhpf;f vjphp jhd; bra;j Fw;wj;ij x;g[gf;bfhz;ljd; nghpy; vjphpia ifJ bra;J epiyak; bfhz;L te;J vjphpfs; ,Utiua[k; epiyak; bfhz;L te;J gjpntLfspy; gjpt[ bra;J ePjpkd;wfhtYf;F mDg;gp itj;njd;”/
10. Thus, it is clear that the petitioner was not arrested before recovery of any jewel. That apart, admittedly the said Alauddin had allegedly stolen the jewels which was handed over to him and he was not examined by the prosecution. It is fatal to the case of the prosecution, since the said Alauddin pledged the jewels in the name of Rashiyabi. Further, the pledge receipt with the State Bank of India, Jalagandapuram, was also not marked by the prosecution. Therefore, there is no material to connect the petitioner along with A1. The Mahazar witness also categorically deposed, on the strength of the confession of A1, the entire recovery was made and after recovery, the Investigation Officer arrested the petitioner and implicated him as A2. Though, P.W.4 to P.W.6 corroborated the evidence of P.W.1 to P.W.3 in respect of jewels which were recovered from State Bank of India, Jalagandapuram, no one had spoken about the presence of the petitioner along with A1. Except the confession statement of A1, there is no other material to connect the petitioner to implicate as accused. Therefore, both the Courts below convicted the petitioner and as such it cannot be sustained only as against the petitioner herein.
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11. In view of the above, the Judgment passed in Criminal Appeal No.23 of 2018 dated 13.07.2018 on the file of the the Hon'ble Sessions (Fast Track Mahila) Court, Namakkal, thereby confirming the Judgment passed in C.C.19 of 2012 dated 25.10.2017 on the file of the Judicial Magistrate, Paramathy, Namakkal are hereby set aside as against the petitioner/A2 alone. The fine amount, if any, paid by the petitioner/A2 shall be refunded to him. The bail bond, if any, executed by the petitioner/A2 shall stand cancelled.
12. Accordingly, this Criminal Revision case is allowed.
07.11.2022 Index: Yes/No Internet: Yes/No Speaking/Non-Speaking order mn To
1. The Sessions (Fast Track Mahila) Court, Namakkal.
2. The Judicial Magistrate, Paramathy, Namakkal.
2. The Inspector of Police, Velur Police Station, Namakkal.
3. The Public Prosecutor, High Court, Madras.
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